Patriot Act Overview

November 30, 2008

Congress has begun considering whether to renew or amend the PATRIOT Act, 16 provisions of which expire on December 31, 2005 unless reauthorized by Congress. This page is intended to provide the most up-to-date information on the legislative debate.

List of expiring provisions

The PATRIOT Act itself does not sunset – of over 150 provisions in the PATRIOT Act, only 16 provisions are covered by the sunset. Some of those covered are uncontroversial, while some of the most controversial provisions in the Act are not slated to sunset. The sunset does not apply to pending investigations. The sunset date is December 31, 2005.

Here’s what the sunset covers – bold indicates those that are controversial in CDT’s view – we have no objections to the others:

A number of highly controversial PATRIOT provisions are not covered by the sunset, and deserve to be reconsidered by Congress, including:

Sec 203(a) – sharing grand jury information

Sec. 213 – sneak and peek searches

Sec. 216 – pen registers for the Internet

Sec. 358 – exceptions to the financial privacy laws

Sec. 505 – “National Security Letter” exceptions to privacy laws

Sec. 802 – definition of domestic terrorism

Many of even the controversial provisions that are due to sunset should not expire entirely. Instead, the sunset debate should focus on amending the Act to include the checks and balances that were left out in the haste to enact the law. Keep the tools, make sure they are under control.

SAFE Act – Checks and Balances for PATRIOT Act Provisions

The SAFE Act is bipartisan legislation introduced in both House and Senate to add to the PATRIOT Act appropriate safeguards to protect civil liberties.

CDT has advocated the following reforms to the PATRIOT Act, most of which are in the bipartisan SAFE Act:

Require particularized suspicion and a factual basis for access to recordsThe PATRIOT Act allows the FBI to obtain a court order forcing the disclosure of any business records upon the mere assertion that the records are “sought for” an authorized intelligence investigation. Under the PATRIOT Act, judges are mere “rubber stamps.” CDT supports giving judges real oversight authority by requiring the FBI to present some facts giving reason to believe that person to whom records pertain is a terrorist or a spy. CDT also supports allowing the recipient of the order to challenge both the disclosure and the “gag order” that accompanies it.The same principle should apply to other sections of the PATRIOT Act that allow FBI officials to obtain certain transactional records without any judicial approval, using so-called “National Security Letters.” CDT supports a requirement that NSLs, like other records requests, be subject to judicial approval upon a fact-based application.

Provide due process when secret intelligence evidence is used in criminal casesUnder the PATRIOT Act, criminal prosecutors have been able to initiate and control intelligence surveillances. When evidence obtained under the intelligence provisions is used in criminal cases, the defendant should be able to review and challenge the evidence, as is the case in normal criminal cases.

Tighten the standards for sneak and peek searchesThe PATRIOT Act allows the government to delay notice of a court-approved search. The provision allowing sneak and peek searches does not sunset, but it should be reexamined nonetheless. In addition to limiting the initial period of delay to 7 days, with extensions, CDT supports narrowing the circumstances in which notification may be delayed, to ensure that these searches are used only under truly extraordinary circumstances.

Modify the definition of “domestic terrorism”The PATRIOT Act’s overbroad definition of domestic terrorism could include acts of civil disobedience by political organizations. While civil disobedience is and should be illegal, it is not necessarily terrorism. CDT advocates limiting the definition to those offenses covered by the federal crime of terrorism.

Administrative Subpoenas – Proposed Expansion of PATRIOT Act

After weeks of Congressional hearings, and just as consensus seemed to be emerging about the need to set appropriate limits on PATRIOT Act powers, the Department of Justice has proposed amendments that would go in exactly the opposite direction, including giving the FBI “administrative subpoena” authority-the power to write its own orders for disclosure of records without prior judicial approval.

Administrative subpoenas are typically suited for the regulatory context-to investigate the administration of federal benefits programs, for example. To say the least, the FBI is not an administrative agency. Administrative subpoenas have also been made available in certain criminal contexts, where the rigorous checks and balances of the criminal justice system provide much-needed protection against abuse. It would be especially unwise to extend this power to intelligence investigations, which are broader, more secretive, and less subject to scrutiny than criminal cases.

Under current law, the FBI already has far-reaching compulsory powers to obtain documents when it is investigating terrorism, under both its criminal and intelligence authority. Giving the FBI this new unfettered power would further erode the standards and protections on government access to personal information.

The Senate Intelligence Committee recently met in private to draft legislation that would expand the FBI’s powers under the PATRIOT Act-giving the FBI administrative subpoena power and the ability to copy the outside of letters and mailings without approval of the US Postal Service. The committee failed to reach a consensus and will reconvene on June 7 for another drafting session.